Wurnitsch v. Nordvik

• Decision Date: 26 January 1971
• Citation: 92 Cal.Rptr. 518,14 Cal.App.3d 679
• Court: California Court of Appeals Court of Appeals
• Parties: Michael WURNITSCH, Plaintiff and Appellant, v. Joyce Ann NORDVIK, Defendant and Respondent. Civ. 25717.

Page 518

92 Cal.Rptr. 518

14 Cal.App.3d 679

Michael WURNITSCH, Plaintiff and Appellant, v. Joyce Ann NORDVIK, Defendant and Respondent.

Civ. 25717.

Court of Appeal, First District, Division 1, California.

Jan. 26, 1971.

Richard P. Schacht, Alameda, for plaintiff-appellant.

Robert J. Kaiser, San Francisco, for defendant-respondent.

SIMS, Associate Justice.

Plaintiff has appealed from a judgment of dismissal which was entered following the granting of the defendant's motion to dismiss the action on the grounds that it was not brought to trial within five years after it was filed. (Code Civ.Proc., § 583.) ¹ He contends that the judgment and the order upon which it is predicated are erroneous because it was established that the defendant driver was absent from the state so as to toll the running of the statutory period. In the establishment of that predicate, he urges that the court erred in considering whether or not he could have served the resident owners of the vehicle, and in ruling that since personal service outside of the state was authorized by the provisions of section 17460 of the Vehicle Code, ² the tolling provisions of the procedural statute were inapplicable. It is concluded that the plaintiff's contentions must be sustained and the judgment of dismissal must be reversed.

The facts, as revealed by the declarations filed in connection with the motion to dismiss, by the declaration of the attorney for plaintiff, which was filed in connection with a prior motion to dismiss, and by admissions contained in the records of the hearings on each of the two motions, are as follows:

The complaint, filed June 1, 1962, seeks to recover damages for injuries to the person and property of plaintiff arising from an automobile collision allegedly occasioned by the negligent operation of a vehicle by the defendant in Alameda County on June 8, 1961. It names fictitious defendants as the principals and as the employers of the defendant.

On April 18, 1967, a hearing was held on defendant's motion to dismiss the action on the grounds that the summons had not been served and returned within three years of the commencement of the action. (See, Code Civ.Proc., § 581a.) ³ The declaration of plaintiff's attorney in opposition to this motion sets forth a long narration of his efforts to settle the case with an adjuster who purported to represent an insurance company which had issued insurance which covered the defendant's liability. It does indicate that unsuccessful efforts were made to serve the named defendant through a process server in October 1962, by the attorney personally during the period from December 1962 through September 1963, and through a second process server in November and December 1963, that neither the occupants at the defendant's given residence address nor the insurance adjuster would furnish any evidence as to her whereabouts other then that she was out of the State of California.

At the hearing on the first motion, the plaintiff offered to call the defendant's mother, who was present, as a witness. The attorney for the defendant represented to the court that his client went to Washington to school in the fall of 1961 and continued in school there for the next three years, except for periodic visits to her home. He expressly waived an affidavit or other proof of those facts, and relied upon the contentions that the action should be dismissed because the plaintiff had failed to serve the defendant out of the state under the provisions of the Vehicle Code, and had failed to serve her parents, who were responsible for her as parents of a minor operator and as owners of the vehicle operated by their daughter.

Upon submission, the first motion was denied with the following comment from the court, 'But I do think * * * that you did sleep on your rights and you left much to be desired in the prosecution of this claim, and if I were you I'd get on the ball.'

Seven months later, on November 21, 1967, the motion to dismiss which led to the order and judgment which is the subject of these proceedings, came on for hearing. At the hearing the attorney filed an affidavit which reveals that after serving a subpoena on the defendant's father, and after the mother appeared at the time set for hearing, he was told for the first time that the defendant was married, her married name, and the city in which she lived in the State of Washington, and that the defendant's mother would verify that the defendant had been continuously a resident outside of the State of California for the greater period of the preceding five years. The matters before the court at the prior hearing, including a transcript of the oral proceedings, were all considered by the court. The court noted that the attorney for the plaintiff had acknowledged at the April hearing, 'I understand now * * * (the defendant's attorney) told me a month ago she's married and is living out of the state still.' Plaintiff's attorney protested that he had not received the defendant's married name or the identity of the place she resided in the State of Washington until the hearing, and that he had ineffectively served her mother as a fictitious defendant by handing her a copy of the summons and complaint at the earlier hearing.

The court, after adverting to the failure to serve the parents as the owners of the vehicle, and the failure to serve the defendant under the provisions of section 17460 of the Vehicle Code, granted the motion. The judgment and this appeal followed.

In Romero v. Snyder (1914) 167 Cal. 216, 138 P. 1002, the court stated, with respect to the provisions of section 583 of the Code of Civil Procedure as they read prior to 1929 when the commencement of the period was changed from 'after answer filed' to 'after action filed,' 'We think the language of section 583 * * * evinces an attempt to cover the entire subject of dismissals for failure to bring an action to trial After answer filed, and to fix: 1. A minimum period within which mere delay is not to be deemed sufficient cause; 2. An immediately ensuing interval of three years, during which the court, in its discretion, may adjudge it sufficient; and, 3. A maximum period of five years, upon the expiration of which, the delay is declared to be sufficient as a matter of law and the dismissal is made mandatory.' (167 Cal. at pp. 219--220, 138 P. at p. 1003. She also, De Mota v. Superior Court (1955) 130 Cal.App.2d 58, 61, 278 P.2d 537.)

'There is no question but that such section is mandatory when it is applicable. (Citation.)' (Pacific Greyhound Lines v. Superior Court (1946) 28 Cal.2d 61, 63, 168 P.2d 665, 666. See also, Judson v. Superior Court (1942) 21 Cal.2d 11, 14, 129 P.2d 361 (overruled on other grounds Goodwine v. Superior Court (1965) 63 Cal.2d 481, 484, 47 Cal.Rptr. 201, 407 P.2d 1); Christin v. Superior Court (1937) 9 Cal.2d 526, 529, 71 P.2d 205; Bass v. Braun (1960) 178 Cal.App.2d 744, 747, 3 Cal.Rptr. 212; Lewis v. Greenspun (1958) 160 Cal.App.2d 711, 715, 325 P.2d 551; Fisher v. Superior Court (1958) 157 Cal.App.2d 126, 129, 320 P.2d 894; Ellsworth v. United States Metals Corp. (1952) 110 Cal.App.2d 727, 728, 243 P.2d 575; and Hunt v. United Artists Studio (1947) 79 Cal.App.2d 619, 622, 180 P.2d 460.) Nevertheless, 'The courts have recognized that the statute relating to dismissals although mandatory in form, should not be applied where, although the defendant was not guilty of acts tending to obstruct the administration of justice, it would have been impracticable for the plaintiff to have brought the action to trial. (Citations.)' (Judson v. Superior Court, supra, 21 Cal.2d 11, 14, 129 P.2d 361, 363. See also, Pacific Greyhound Lines v. Superior Court, supra, 28 Cal.2d 61, 63--64, 168 P.2d 665; Christin v. Superior Court, supra, 9 Cal.2d 526, 530 and 533, 71 P.2d 205; Bass v. Braun, supra, 178 Cal.App.2d 744, 748, 3 Cal.Rptr. 212; Fisher v. Superior Court, supra, 157 Cal.App.2d 126, 129, 320 P.2d 894; De Mota v. Superior Court, supra, 130 Cal.App.2d 58, 62, 278 P.2d 537; Ellsworth v. United States Metals Corp., supra, 110 Cal.App.2d 727, 728, fn. 1, 243 P.2d 575; Hunt v. United Artists Studio, supra, 79 Cal.App.2d 619, 623--624, 180 P.2d 460; Ojeda v. Municipal Court (1946) 73 Cal.App.2d 226, 229--231, 166 P.2d 49; and Carmichael v. Superior Court (1942) 55 Cal.App.2d 406, 408--409, 130 P.2d 725.)

Plaintiff, however, cannot rely upon the latter doctrine because the question of whether it is impracticable or futile to proceed with a case during the five-year period is generally a question of fact. As such, the ruling of the trial court, if supported by any evidence, will be upheld whether it dismisses (see, Bass v. Braun, supra, 178 Cal.App.2d 744, 747, 3 Cal.Rptr. 212; Lewis v. Greenspun, supra, 160 Cal.App.2d 711, 716, 325 P.2d 551; and Ellsworth v. United States Metals Corp., supra, 110 Cal.App.2d 727, 729, 243 P.2d 575) or refuses to dismiss the case (see, Pacific Greyhound Lines v. Superior Court, supra, 28 Cal.2d 61, 68, 168 P.2d 665; Judson v. Superior Court, supra, 21 Cal.2d 11, 14, 129 P.2d 361; De Mota v. Superior Court, supra, 130 Cal.App.2d 58, 62, 278 P.2d 537 (petitioner De Mota); and Ojeda v. Municipal Court, supra, 73 Cal.App.2d 226, 230, 166 P.2d 49; but cf. Fisher v. Superior Court, supra, 157 Cal.App.2d 126, 132--133, 320 P.2d 894; and De Mota v. Superior Court, supra, 130 Cal.App.2d at pp. 62--63, 278 P.2d 537 (petitioner Erickson)).

The question of the effect of the defendant's absence from the state on the mandatory provisions of section 583 was raised in Ojeda v. Municipal Court, supra. There the court, with reference to the statute as it read prior to its amendment in 1945, followed Judson v. Superior Court and Carmichael v. Superior Court, supra, and concluded as follows: 'Upon the oral argument counsel for appellant sought to distinguish the Judson and Carmichael cases upon the ground that in those cases the defendant was out of the...